Justice Antonin Scalia is rightly known as the most conservative member of the very conservative Roberts Supreme Court. The image is so strong that the rest of him gets overlooked. He’s easily the court’s most colorful justice. He’s gone hunting with Dick Cheney and returned unscathed. His volatile courtroom demeanor is legend. So is his outspoken reverence for tradition, both legal and cultural. Likewise his pious Roman Catholicism.
His name recalls an earlier figure in Western jurisprudence, Antoninus Pius, the second-century Roman emperor whose own name means “pious.” A scholarly, even-tempered, compassionate ruler, he pioneered the legal principle of “innocent until proven guilty.” He was a great benefactor of Judaism, restoring it to legality after the Hadrianic persecutions. The emperor’s first name, Antoninus, is a Latin diminutive, roughly meaning “little Anthony.” You might call him Little Anthony the Imperial.
But we digress. What of our modern-day Antoninus? Scholarly? Definitely. Compassionate? Not so much. Even-tempered? Get real. Benefactor of the Jews? That’s what we’re here to examine. From what’s generally known, we could call him Little Anthony the Imperious.
For instance, just the other day, October 7, Scalia put his imperious stamp on the Supreme Court’s new fall season, offering a snarling display of bile that startled even veteran court-watchers. The justices were hearing arguments in a case involving an eight-foot metal cross erected as a war memorial on federal parkland somewhere in California’s Mojave Desert. A lawyer from the American Civil Liberties Union argued that a cross is a Christian religious symbol and placing it on federal property, even to honor the hallowed dead, violates the Establishment Clause of the First Amendment, banning governmental “establishment of religion.”
Scalia, according to all published accounts, expressed astonishment that anyone might somehow think that “the cross doesn’t honor non-Christians who fought in the war” right along with Christians. “The cross is the most common symbol of the resting place of the dead,” he insisted. ACLU lawyer Peter Eliasberg countered that the cross is a specifically Christian symbol, that it signifies Jesus as savior and that it never appears on, for example, Jewish graves. As he spoke Scalia turned “visibly angry,” by all accounts, and finally snapped: “I think that’s an outrageous conclusion.”
The pesky cross first appeared in 1934, bolted to a rock in what is now the Mojave National Preserve, put there by the now-defunct Death Valley post of the Veterans of Foreign Wars. In 1999 a retired preserve administrator, Frank Buono, asked the National Park Service to remove the cross as a First Amendment violation. The Republican-led Congress promptly banned the use of federal funds to dislodge it. Buono sued in federal court. Congress then declared the rock and its immediate surroundings to be private VFW property and thus exempt from constitutional restrictions — for as long as the cross remained there. Since then the case has bounced back and forth between various courts, which keep ordering the cross removed, and Congress, which blocks it.
The legal issues before the Supreme Court are almost comically technical, considering the swirling emotions. The main question is whether the VFW land swap was genuine, given that it was conditional. Another is whether Buono had legal “standing” to sue. U.S. Solicitor General Elena Kagan argued that Buono, an avowed Catholic, couldn’t be offended by a cross, and therefore he can’t claim religious “injury” as required in First Amendment lawsuits.
What’s at stake is much bigger, though. This is the Roberts Supreme Court’s first tangle with the Establishment Clause. Amid our bitter divisions over the place of religion in public life, this will be America’s first look at where the court might steer us over the next generation. Scalia is the intellectual anchor of the court’s conservative majority. His views will be critical.
Not surprisingly, Scalia’s outburst has evoked a flood of comment, mostly negative. It’s coming from across the board, with the notable exception of the major Jewish organizations, which have been weirdly silent.
The most frequent complaint is that the justice wants to secularize the cross, “to gut Christian symbols of their Christian meaning in order to justify their deployment by government,” in the words of the Catholic weekly magazine America.
“It’s not really a cross, the place where Jesus Christ died for the sins of all mankind,” one popular blogger wrote on the Atlanta Journal-Constitution Web site. “No, Scalia asks us to pretend that it’s just a horizontal stick tied to a vertical stick, a generic, bland little device, ‘the most common symbol of the resting place of the dead’ for all faiths.”
Alas, they misunderestimate the justice. He’s not aiming to neuter the cross. He affirms its Christian sanctity. But as a radical majoritarian he expects non-Christians to accept its dominance. By “common symbol” he doesn’t mean the cross is a neutral marker accessible to all in common. He means it’s the marker most commonly seen in cemeteries, and that non-Christians should sleep peacefully knowing they lie beneath the symbol of mankind’s common savior.
Scalia makes no secret of his beliefs. Just weeks ago, in a September 16 interview with the Brooklyn-based Haredi newspaper Hamodia, Scalia declared that the Establishment Clause “does not mean that government cannot accommodate religion, and indeed favor religion.”
The Supreme Court, he said, “has a series of opinions that say that the Constitution requires neutrality on the part of the government, not just between denominations, not just between Protestants, Jews and Catholics, but neutrality between religion and non-religion. I do not believe that.”
In other words, the government can favor religion, promote it, subsidize it, encourage it — it just can’t establish it. Whatever that means.
That’s the outrageous conclusion in all this. No one stands to lose more from it than the Jewish community. Jews have fought hard to achieve a truly neutral public square where all are equal. Rolling back that neutrality means rolling back Jewish freedom.
Benefactor? Not so much.
Contact J.J. Goldberg at goldberg@forward.com and read his blog at blogs.forward.com/jj-goldberg
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Yes, it would be good if more Jewish figures/groups spoke up about Scalia's outrageous remark and implied judgement, but I'd also like to know more about the Congressional folk who have persisted in creating and sustaining the Establishment....
The cross was an instrument of torture. Imagine if your loved one was shot by a revolver. Would you wear a replica of it around your neck? Or place a replica of it as a tombstone?
All fine and dandy, if the question was about putting up a new cross now. But the thing has been there for three-quarters of a century. Why should we, as Jews, need to see it taken down? Remember the firestorm a couple of years back, when it was (incorrectly) reported that a rabbi wanted Christmas trees banned at Sea-Tac Airport.
If we want to argue that we ought to be allowed to put up our own symbol there - that's one thing; but we needn't interfere with the rights of others in order to do so.
For an ostensibly intelligent man who made it to the Supreme Court,he knows nothing about other religions. He should hide his head in shame at his ignorance.
What is it about a cross that frightens modern jews so much?
Promoting a state religion? Which one? Catholic, Presbyterian, Lutheran, Baptist, Evangelic, Mormon, Methodist, or a dozen other religions that use the cross as a symbol. Yet, they are all different in many ways.
When the ACLU forced the removal of the ten commandments from in front of a courthouse in Alabama, I came to the conclusion that it was an attack on all religion(s)and vowed that I would defend everyones' right to put a religiouss symbol in a public place.
Symbolism only has content if you give it content!!!
Uncivil RELIGION??? That is a dastardly slur.
I'm rather stunned that the Christian community is just as upset at his remarks at the non-Christian community, albeit for different reasons.
It takes a really special kind of "intellect" to royally pi$$ off everybody.
Six members of the court are Roman Catholics; two are Jews. These numbers should mean nothing in a country where religious preference is personal, not public. The two arch-conservative Catholics on the court (Scalia and Thomas) are also the most politically and socially conservative; Roberts and Alito, only a bit less so. So, again, the only hope for reason to prevail is to hope that Kennedy swings to the side of the four remaining reasonable justices. This is a crazy system of justice where the right screams "judicial activism" only when their ox is being gored. Eviscerate the first amendment and the right applauds.
'It just can't establish it, whatever that means.' In simple terms the Founding Fathers were opposed to the 'established' Church of England whose Supreme Governor is the King [or Queen], whose bishops automatically have seats in the House of Lords and whose episcopal palaces, cathedrals and parish churches and schools receive govt funding. The Founding Fathers did not want one official church, especially as so many colonists had come to America because they opposed the C of E, either as Puritans or Roman Catholics.
Why not just declare the cross an historical monument and preserve it as such. If they were puting crosses on the gravestones of Jewish soldiers that would be cause for complaint, but this is a personal memorial put up by veterans of foreign wars to remember their comrades. Most English towns and villages have a cross in memory of those who died in the two World Wars, and I can't recall any complaints. Why start complaining 75 years late?
"Why start complaining 75 years late?" Because 75 years ago Christians burned niggers (their word, not mine) in the U.S. on the cross. The cross was too powerful. Now no people are being burned on it and now people are getting bold. Bring back the fear and you can beat back the Pagans. But, until then you must suffer the fact that, contemporarily speaking, many people are trying to make the cross no more important than a Buddha.